Wilson v. Bumstead
| Decision Date | 09 November 1881 |
| Citation | 10 N.W. 411,12 Neb. 1 |
| Parties | ALMON H. WILSON, PLAINTIFF IN ERROR, v. L. J. BUMSTEAD, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J. The case is stated in the opinion.
AFFIRMED.
Mason & Whedon, for plaintiff in error, cited Pennsylvania Railroad v. Zebe, 33 Penn. State, 318. Sullivan v U. P. Railroad, 3 Dillon, 335. Peck v. Mayor, 3 Comstock, 489. Field on Damages. Gilligan v. The New York & Harlem R. R., 1 E. D. Smith, 458. Potter v Chicago & Northwestern R. R., 21 Wis. 372.
W. J Lamb, for defendant in error.
No action would lie at common law. Sedgwick on Damages, 644. The whole matter is regulated by statute. Comp. Stat., 211. Railroad Co. v. Barron, 5 Wall. 90. Dickens v. New York Central, 28 Barb., 41. Pennsylvania Railroad v. Bantom, 54 Penn. State, 495. Taylor v. Western Pacific, 45 Cal. 324. Chicago & Rock Island v. Morris, 26 Ill. 400. C. C. & C. R. R. v. Crawford, 24 Ohio St. 633.
The plaintiff in his own name commenced an action in the district court of Lancaster county against the defendant to recover from him $ 10,000.00 for the death of two of his children alleged to have been caused by the defendant who "so carelessly, negligently, ignorantly and unskilfully doctored and cared for said children; that by the ignorance, negligence and unskilfullness of said defendant, the said children were both killed, and died from the effects of the ignorance, carelessness, negligence and unskilfullness of said defendant, L. J. Bumstead," etc.
The defendant answered the petition and alleged, First. That the plaintiff is not now, nor was he at the commencement of the action next of kin to said deceased persons. Second. That there is a defect of parties plaintiff in this that the legal representatives of the deceased children are not made parties plaintiff, etc. The third defense it is unnecessary to notice.
The plaintiff demurred to the first and second counts of the answer. The demurrer was overruled and the plaintiff electing to stand on his demurrer the action was dismissed.
The question to be determined is, must an action of this kind be brought by the administrator, or may a father maintain an action in his own name for the death of his children?
Chapter 21 of the Comp. Stat., 211 is as follows:
Section 1. That whenever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company, or corporation, which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
Sec. 2. That every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportion provided by law, in relation to the distribution of personal property left by persons dying intestate; and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries, resulting from such death, to the wife and next of kin of such deceased person, not exceeding the sum of five thousand dollars; Provided, That every such action shall be commenced within two years after the death of such person.
At common law and independent of statutory provisions, an...
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